NOVA: Pre-2021 version of DC 5055 applies to partial knee replacements
/NOVA v. Secretary of VA, 48 F.4th 1307 (Fed. Cir. 2022)
HELD: DC 5055 did not unambiguously exclude partial knee replacements.
Summary: In Hudgens v. McDonald, VA denied a 100% rating for a veteran’s partial knee replacement because it determined that DC 5055 only applied to TOTAL knee replacements. The CAVC affirmed – and Mr. Hudgens appealed to the Federal Circuit. Less than two weeks before the Secretary’s brief was due, VA published its “Knee Replacement Guidance,” which said it was VA’s “long-standing interpretation” of the regulations that the 100% rating only applied to total knee replacements – and that an “explanatory note” saying this would be added to 38 CFR 4.71a. Despite this (or maybe because of this?), the Federal Circuit reversed the CAVC’s decision and held that DC 5055 doesn’t unambiguously exclude partial knee replacements.
Four years later, VA amended DC 5055 – following notice and comment rulemaking – to clarify the intent that this DC only applies to total knee replacements. The change became effective on Feb. 7, 2021.
NOVA petitioned the Federal Circuit to invalidate the new rule. The Court first determined that the GUIDANCE was “final agency action” that could be reviewed under 38 USC § 502 – and determined that it was arbitrary & capricious – because it inserted an explanatory note into DC 5055 (the regulation) WITHOUT going through notice-and-comment rulemaking. VA promulgated DC 5055 in 1978 following such rulemaking. Therefore, VA can’t amend DC 5055 without going through that same process.
The Federal Circuit refused to defer to the Agency’s interpretation because it was inconsistent with numerous Board decisions that rated partial knee replacements under DC 5055.
Advocacy note: This case is a good example of using Board decisions for their persuasive value.
